IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 5.7.2012

CORAM

THE HON'BLE MR.JUSTICE M.JAICHANDREN 

W.P.No.6632 of 2012 and W.P.No.13405 of 2012


M.Sakthivel					.. 	Petitioner in 
							both the writ petitions

Vs.


The District Collector
Erode						.. 	The first respondent in

both the writ petitions The Rural Development Assistant Director (Panchayat) Erode District Erode .. The second respondent in both the writ petitions The Block Development Officer Kodumudi, Erode District .. The third respondent in W.P.No.6632 of 2012 The Commissioner Kodumudi panchayat Union Kodumudi, Erode District .. The third respondent in W.P.No.13405 of 2012 Kodumudi Panchayat Union Represented by its Chairman Kodumudi, Erode District .. The fourth respondent in both the writ petitions Anjur Panchayat Represented by its President Anjur, Kodumudi panchayat Union Erode District .. The fifth respondent in both the writ petitions Kousic & Co Represented by its Managing Partner K.G.Mohanraj No.A-24, Housing Unit Kollampalayam Erode District 638 002 .. sixth respondent in both the writ petitions W.P.No.6632 of 2012:

This writ petition has been filed under Article 226 of the Constitution of India praying for a writ of Mandamus directing the respondents 1 to 5 not to confer the licence to run the blue metal and bitumen tar mixing unit in the Anjur village in survey Nos.291/9, 291/10 and 291/11 to the sixth respondent herein as the same will affect the life of the petitioner and the petitioner livelihood.

W.P.No.13405 of 2012:

This writ petition has been filed under Article 226 of the Constitution of India praying for a writ of Certiorari to call for the records relating to the third respondent herein in R.c.No.1804/2011/B2 dated 7.5.2012 and quash the same.

For petitioner : Mr.R.S.Anandan For Respondents : Mr.S.Navaneethan AGP for R1 and R2 Mr.M.E.Raniselvam for R3 Mr.S.P.Prabakaran AGP for R4 Mr.K.H.Ravikumar for R5 Mr.K.A.Ravindran for R6 C O M M O N O R D E R Since, the issues involved in both the writ petitions are similar in nature, they have been taken up together and a common order is being passed.

2. Heard the learned counsel for the petitioner, as well as the learned counsels appearing on behalf of the respondents.

3. The writ petition, in W.P.No.6632 of 2012 has been filed praying that this Court may be pleased to issue a writ of Mandamus, directing the respondents 1 to 5 not to grant the licence to the sixth respondent to run the blue metal and bitumen tar mixing unit, in survey Nos.291/9, 291/10 and 291/11, in Anjur village, Erode District, as the granting of such licence would affect the life and livelihood of the petitioner.

4. The writ petition, in W.P.No.13405 of 2012, has been filed praying that this Court may be pleased to issue a writ of Certiorari to call for and quash the proceedings of the third respondent, in R.C.No.1804/2011/B2, dated 7.5.2012, granting temporary licence, to the sixth respondent, to run the blue metal and bitumen tar mixing unit.

5. The learned counsel appearing on behalf of the petitioner had submitted that the sixth respondent could run the blue metal and bitumen tar mixing unit only after obtaining a licence from the authorities concerned, in accordance with the provisions of the Tamil Nadu Panchayats Act, 1994, and the Rules framed thereunder.

6. He had further submitted that Section 160 of the said Act states that no person shall construct or establish any factory, workshop or workplace, using power, as specified in the said provisions or install in any premises any machinery or manufacturing plant driven by such power, without obtaining the permission of the panchayat union council concerned. However, the sixth respondent has constructed a blue metal and bitumen tar mixing unit and has been running the same without obtaining the necessary licence, as per the provisions of Section 160 of the Act. Further, the blue metal and bitumen tar mixing unit established by the sixth respondent has been causing air, water and noise pollution and has been causing nuisance to the petitioner and to the other persons living in the vicinity of the said unit.

7. It had also been stated that the life and livelihood of the petitioner and his family members are being adversely affected due to the running of the said unit, by the sixth respondent.

8. The learned counsel appearing for the petitioner had further submitted that the fifth respondent panchayat has rejected the request of the sixth respondent, for establishing and for running the blue metal and bitumen tar mixing unit, as the said unit had been established without fulfilling the necessary requirements prescribed by law. In such circumstances, the sixth respondent had filed an appeal before the District Collector, Erode, the first respondent in the present writ petitions, challenging the resolution of the fifth respondent panchayat rejecting the request of the petitioner. The District Collector, Erode, the first respondent herein, had issued an order, dated 4.5.2012, under Section 202 of the Tamil Nadu Panchayats Act, 1994, setting aside the proceedings of the Commissioner panchayat union, Kodumudi, dated 28.3.2012, informing that the fifth respondent panchayat had rejected the request of the petitioner for establishing and for running the blue metal and bitumen tar mixing unit, in Anjur village, Erode District.

9. The learned counsel appearing for the petitioner had further submitted that the first respondent had set aside the resolution rejecting the request of the sixth respondent for establishing and for running the blue metal and bitumen tar mixing unit. It had been further stated that the said order would be subject to the decision of this Court, in M.P.No.1 of 2012 and W.P.No.6632 of 2012, filed by the petitioner.

10 The learned counsel appearing for the petitioner had further submitted that, based on the said order passed by the first respondent, the Block Development Officer, Kodumudi, Erode District, had granted a temporary licence, to the sixth respondent, to run the blue metal and bitumen tar mixing unit, by his order, dated 7.5.2012, which has been challenged by the petitioner, in W.P.No.13405 of 2012.

11. The learned counsel appearing for the petitioner had further submitted that the Block Development Officer, Kodumudi, Erode District, the third respondent, in W.P.No.6632 of 2012, does not have the power or the authority to issue a temporary licence to the sixth respondent. The District Collector, Erode District, the first respondent in the present writ petitions, had not granted the licence in favour of the sixth respondent. By his order, dated 4.5.2012, the first respondent had only set aside the resolution rejecting the request of the sixth respondent for the grant of a licence to run the blue metal and bitumen tar mixing unit. The first respondent had not issued a positive direction to the Block Development Officer, Kodumudi, Erode District, or to any other authority, to issue the licence in favour of the sixth respondent. While so, it is not open to the Block Development Officer, Kodumudi, Erode District, to issue a temporary licence in favour of the sixth respondent, renewable every year. The said order is also contrary to the directions issued by this Court, in W.P.No.21828 of 2011. According to the order passed by this Court, in W.P.No.21828 of 2011, the Block Development Officer, Kodumudi, Erode District, ought to have passed an order, on the request made by the sixth respondent, only after giving an opportunity of hearing to the petitioner herein and to the other persons residing in the locality concerned.

12. A counter affidavit has been filed on behalf of the sixth respondent stating that the land in which the blue metal and bitumen tar mixing unit has been constructed was purchased from the petitioner and his family members, on 9.7.2008, by way of a registered sale deed. The blue metal and bitumen tar mixing unit is situated at Muthugoundampalayam, Kodumudi taluk, Erode District, coming under the Anjur panchyat. It is located in a remote area, away from the residential houses of the persons living in the said area and therefore, there is no chance of any pollution being caused due to the running of the unit, and it would not cause any nuisance or disturbance to those who are living in the area concerned, as alleged by the petitioner.

13. It had been further stated that the plan for constructing the blue metal and bitumen tar mixing unit had been approved by the Deputy Director of Town Planning, Salem Circle, Salem, in his proceedings, dated 14.7.2011, on payment of a sum of Rs.1,97,000/-, for obtaining the planning permission. The Public Health Department had also given the No Objection certificate, dated 24.2.2011. The Fire Service Department had also given a "No Objection" certificate to run the blue metal and bitumen tar mixing unit, vide proceedings, dated 16.11.2010. The Pollution Control Board had also given its consent, under Section 25 of the Water (Prevention and Control of Pollution) Act, 1974, and under Section 21 of the Air (Prevention and Control of Pollution) Act, 1981, on 12.10.2011. Even though the authorities concerned had given their consent to run the blue metal and bitumen tar mixing unit, the Block Development Officer, Kodumudi, had rejected the request of the petitioner, by his proceedings, dated 16.8.2011.

14. Aggrieved by the said proceedings of the third respondent, the sixth respondent had filed the writ petition in W.P.No.21828 of 2011. This Court, by its order, dated 6.1.2012, had modified its earlier order, dated 1.12.2011, made in W.P.No.21828 of 2011, directing the third respondent to dispose of the application of the petitioner, in accordance with law. However, the third respondent had rejected the application of the petitioner, once again, without proper application of mind.

15. It had been further stated that the Kodumudi panchayat union council had also rejected the request of the petitioner, for the grant of a licence, to run the blue metal and bitumen tar mixing unit, without considering the certificates furnished by the sixth respondent. Aggrieved by the said order, the sixth respondent had filed an appeal before the first respondent, on 18.4.2012. The first respondent had allowed the appeal and had granted the licence to the sixth respondent to run the blue metal and bitumen tar mixing unit, on 4.5.2012. Based on the said order, the Block Development Officer, Kodumudi, Erode District, had issued the proceedings, dated 7.5.2012, granting a temporary licence, in favour of the sixth respondent, to run the blue metal and bitumen tar mixing unit, subject to the order to be passed by this Court, in W.P.No.6632 of 2012.

16. The learned counsel appearing for the sixth respondent had submitted that, on obtaining the temporary licence issued by the third respondent, the sixth respondent has undertaken several Government contracts for laying metal roads, in Erode District. The Commissioner, Erode Municipal Corporation, had awarded a number of contract works, which are being carried out by the sixth respondent, using the materials brought from the blue metal and bitumen tar mixing unit located in Anjur village, Erode District.

17. The learned counsel appearing for the sixth respondent had also submitted that the road laying and repair works have to be completed within the stipulated period of three/six months. The petitioner has filed the present writ petitions, vexatiously, on the inducement of some persons, who are having certain vested interests in causing irreparable loss to the sixth respondent. Further, the writ petitions have been filed only with the malafide intention of causing irreparable loss and mental agony to the sixth respondent. As such, the writ petitions, filed by the petitioner, are devoid of merits and therefore, they are liable to be dismissed.

18. In view of the submissions made on behalf of the parties concerned, and on a perusal of the records available, this Court is of the considered view that the Block Development Officer, Kodumudi, Erode District, the third respondent herein, had issued the temporary licence, in favour of the sixth respondent, to run the blue metal and bitumen tar mixing unit, located in Anjur Village, Erode District, vide his order, dated 7.5.2012, without having the power or the authority to do so. The sixth respondent has not been in a position to show that the third respondent could issue such a temporary licence under the provisions of the Tamil Nadu Panchayats Act, 1994.

19. It is not in dispute that the sixth respondent could be allowed to run the blue metal and bitumen tar mixing unit, only after obtaining the necessary permission from the Panchayat Union Council concerned as per the provisions of Section 160 of the Tamil Nadu Panchayats Act, 1994. However, from the records available, it is clear that no such permission had been obtained for running the blue metal and bitumen tar mixing unit. In fact, the request made by the sixth respondent had been rejected by the Panchayat Union Council concerned, as seen from the communication issued by the Commissioner Kodumudi Panchayat Union, kodumudi, dated 28.3.2012.

20. It is also noted that an appeal had been preferred by the sixth respondent, before the District Collector, Erode District, the first respondent herein, who had set aside the resolution of the Panchayat Union Council, rejecting the request of the sixth respondent for the grant of a licence. However, the first respondent had not issued any positive direction, granting a licence to the sixth respondent, permitting the running of the blue metal and bitumen tar mixing unit concerned.

21. It is also noted that the Block Development Officer, Kodumudi, Erode District, had not followed the directions issued by this Court, by its order, dated 1.12.2011, made in W.P.No.21828 of 2011.

22. By its order, dated 1.12.2011, this Court had directed the Block Development Officer, Kodumudi, Erode District, to consider the application of the sixth respondent, for the grant of a licence, to run the blue metal and bitumen tar mixing unit, in Anjur village, and to pass appropriate orders thereon, after giving an opportunity of hearing to the petitioner and the other persons residing in the area concerned. Instead, the Block Development Officer, Kodumudi, Erode District, had passed an order, dated 7.5.2012, granting a temporary licence to the sixth respondent, to run the blue metal and bitumen tar mixing unit, pursuant to the order passed by the District Collector, Erode District, dated 4.5.2012, without following the directions issued by this Court, by its order, dated 1.12.2011, made in W.P.No.21828 of 2011. In such circumstances, this Court finds it appropriate to set aside the proceedings of the first respondent, dated 4.5.2012, and the consequential proceedings of the Block Development Officer, Kodumudi, Erode District, dated 7.5.2012. The District Collector, Erode District, the first respondent herein, is directed to pass appropriate orders on the application of the sixth respondent, for running the blue metal and bitumen tar mixing unit, in Anjur village, Erode District, on merits and in accordance with law, after giving an opportunity of hearing to the petitioner, the respondents 4 to 6, and the other persons concerned, who may be adversely affected by the running of the blue metal and bitumen tar mixing unit by the sixth respondent, in accordance with the procedures established by law, as expeditiously as possible, not later than four weeks from the date of receipt of a copy of this order. The petitioner, as well as the respondents 4 to 6, shall co-operate, fully in the enquiry proceedings to be held by the first respondent.

The writ petitions are ordered accordingly. No costs. Connected M.P.Nos.1 and 1 of 2012 and M.P.No.2 of 2012 are closed.

lan To:

The District Collector Erode The Rural Development Assistant Director (Panchayat) Erode District Erode The Block Development Officer Kodumudi, Erode District The Commissioner Kodumudi panchayat Union Kodumudi, Erode District Kodumudi Panchayat Union Represented by its Chairman Kodumudi, Erode District Anjur Panchayat Represented by its President Anjur, Kodumudi panchayat Union Erode District